(b)
While the Covenant does not prohibit
the death penalty, the Committee has taken the view,
which has been reflected in the Second Optional
Protocol to the Covenant, that article 6 "refers
generally to abolition in terms which strongly
suggest that abolition is desirable6." Reducing
recourse to the death penalty may therefore be seen
as one of the objects and purposes of the Covenant.
Life on death row, harsh as it may be, is preferable to
death. Furthermore, experience shows that delays in
carrying out the death penalty can be the necessary
consequence of several factors, many of which may
be attributable to the State party. Sometimes a
moratorium is placed on executions while the whole
question of the death penalty is under review. At other
times the executive branch of government delays
executions even though it is not feasible politically to
abolish the death penalty. The Committee would wish
to avoid adopting a line of jurisprudence which
weakens the influence of factors that may very well
lessen the number of prisoners actually executed. It
should be stressed that by adopting the approach that
prolonged detention on death row cannot, per se, be
regarded as cruel and inhuman treatment or
punishment under the Covenant, the Committee does
not wish to convey the impression that keeping
condemned prisoners on death row for many years is
an acceptable way of treating them. It is not.
However, the cruelty of the death row phenomenon is
first and foremost a function of the permissibility of
capital punishment under the Covenant. This situation
has unfortunate consequences.
(c)
The provisions of the Covenant must
be interpreted in the light of the Covenant's objects
and purposes (article 31 of the Vienna Convention
on the Law of Treaties). As one of these objects and
purposes is to promote reduction in the use of the
death penalty, an interpretation of a provision in the
Covenant that may encourage a State party that
retains the death penalty to make use of that penalty
should, where possible, be avoided.
8.3 In light of these factors, the Committee must
examine the implications of holding the length of
detention on death row, per se, to be in violation of
articles 7 and 10. The first, and most serious,
implication is that if a State party executes a
condemned prisoner after he has spent a certain period
of time on death row, it will not be in violation of its
obligations under the Covenant, whereas if it refrains
from doing so, it will violate the Covenant. An
interpretation of the Covenant leading to this result
cannot be consistent with the Covenant's object and
purpose. The above implication cannot be avoided by
refraining from determining a definite period of
detention on death row, after which there will be a
presumption that detention on death row constitutes
cruel and inhuman punishment. Setting a cut-off date
certainly exacerbates the problem and gives the State
party a clear deadline for executing a person if it is to
avoid violating its obligations under the Covenant.
However, this implication is not a function of fixing
the maximum permissible period of detention on
death row, but of making the time factor, per se, the
determining one. If the maximum acceptable period is
left open, States parties which seek to avoid
overstepping the deadline will be tempted to look to
the decisions of the Committee in previous cases so as
to determine what length of detention on death row
the Committee has found permissible in the past.
8.5 Finally, to hold that prolonged detention on
death row does not, per se, constitute a violation of
articles 7 and 10, does not imply that other
circumstances connected with detention on death
row may not turn that detention into cruel, inhuman
and degrading treatment or punishment. The
jurisprudence of the Committee has been that where
compelling circumstances of the detention are
substantiated, that detention may constitute a
violation of the Covenant. This jurisprudence should
be maintained in future cases.
8.6 In the present case, neither the author nor his
counsel have pointed to any compelling
circumstances, over and above the length of the
detention on death row, that would turn
Mr. Johnson's detention into a violation of articles 7
and 10. The Committee therefore concludes that
there has been no violation of these provisions.
8.4 The second implication of making the time
factor per se the determining one, i.e. the factor that
turns detention on death row into a violation of the
Covenant, is that it conveys a message to States
parties retaining the death penalty that they should
carry out a capital sentence as expeditiously as
possible after it was imposed. This is not a message
the Committee would wish to convey to States parties.
8.7 Regarding the claim under articles 7 and 14,
paragraph 3 (g) - i.e. that the author was beaten
during police interrogation with a view to extracting
a confession of guilt -the Committee reiterates that
the wording of article 14, paragraph 3 (g), namely
that no one shall "be compelled to testify against
himself or to confess guilt", must be understood in
terms of the absence of any direct or indirect
physical or psychological pressure from the
investigating authorities on the accused, with a view
to obtaining a confession of guilt7. Although the
6
7
See General Comment 6 [16] of 27 July 1982; also
see Preamble to the Second Optional Protocol to the
Covenant Aiming at the Abolition of the Death Penalty.
e.g. Views on communication No. 248/1987
(G. Campbell v. Jamaica), adopted 30 March 1992,
paragraph 6.7
130
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents